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6th Circuit Remands RLUIPA “Equal Terms” Zoning Challenge

In Tree of Life Christian Schools v. City of Upper Arlington, (6th Cir., May 18, 2016), the U.S. 6th Circuit Court of Appeals in a 2-1 decision reversed and remanded in a RLUIPA land use case, finding that material facts remain as to the application of RLUIPA’s “equal terms” provision. At issue is an Ohio city’s refusal to rezone a large office building for use as a religious school. The office building is in an area zoned as an “Office and Research District” — an area designed for uses that would maximize the city’s tax revenues. The majority said in part:

The religious land use that TOL Christian Schools proposes is, we assume without deciding, deleterious to the purpose of the regulation at issue (which we assume to be increasing income-tax revenue). But the nonreligious uses that the government concedes it would allow seem to be similarly situated to the regulation….. [T]he government suggested at oral argument that it would prefer that [the property] be used for an ambulatory care center or outpatient surgery center. But we cannot assume as a fact… that an ambulatory care center (or an outpatient surgery center, or a data and call center, or office space for a not-for-profit organization, or a daycare) would employ higher-income workers than TOL Christian Schools would….